Madras High Court
V.Rajendran vs Joint Registrar Of Cooperative ... on 21 August, 2023
2023:MHC:3855
2023:MHC:3855
W.P.No.24794 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 21.08.2023
Coram:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
W.P.No.24794 of 2017
and WMP No.26177 of 2017
V.Rajendran
... Petitioner
Vs.
1. Joint Registrar of Cooperative Societies,
Villupuram Zone, Villupuram.
2. President,
E-2028 Kandamanady Primary Agricultural
Cooperative Society,
Kandamanady, Villupuram Taluk & District.
.... Respondents
Prayer: PETITION filed under Article 226 of the Constitution of India
praying for the issuance of Writ of Certiorarified Mandamus calling for the
concerned records from the 1st respondent, quash the order of the 1st
respondent dated 10.04.2017 bearing Ref.No.Na.Ka.7136/2016/Sa.Pa
rejecting the Revision on the ground that the terminal benefits need not be
settled till the conclusion of the Disciplinary Proceedings as illegal, arbitrary,
contrary to law and violation of Article 21 of the Constitution of India and for
a consequential direction directing the 2nd respondent to settle all the terminal
benefits with interest at the rate of 18% per annum.
https://www.mhc.tn.gov.in/judis
1
W.P.No.24794 of 2017
For Petitioner : Mr.Balan Haridas
For Respondent : Mr.S.Ravikumar
Special Government Pleader – R1
Mr.L.P.Shanmugasundaram - R2
ORDER
This Writ Petition has been filed in the nature of a Certiorarified
mandamus seeking records of the first respondent Joint Registrar of
Cooperative Societies, Villupuram and to quash the order dated 10.04.2017
bearing Ref.No.Na.Ka.7136/2016/Sa.Pa, by which order, it had been stated
that the terminal benefits payable to the petitioner should not be settled till the
conclusion of the Disciplinary Proceedings, which were pending against the
petitioner herein.
2. The petitioner had joined the second respondent E-2028
Kandamanady Primary Agricultural Cooperative Society, Villupuram Taluk as
Salesman in the year 1987 and finally retired from service on 30.06.2015 as
senior clerk. Thereafter, he had been seeking settlement of his terminal
benefits. Since the same has not been paid, the petitioner has filed a revision
petition before the first respondent seeking payment of terminal benefits, like,
gratuity, provident fund, staff security deposit and such other benefits.
3. However, the said revision petition had been returned necessitating
the petitioner to file a Writ Petition in W.P.No.33919 of 2016 before this
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W.P.No.24794 of 2017
Court, wherein a direction was issued to the first respondent to dispose the
revision petition filed by the petitioner within a stipulated period. Thereafter,
it had been stated by the first respondent that since the disciplinary
proceedings were pending against the petitioner, the terminal benefits could
not be paid.
4. In the counter affidavit filed filed by the second respondent it had
been stated that as against the petitioner, since there had been allegations
about the financial irregularities, enquiry under Section 81 of the Tamil Nadu
Cooperative Societies Act, 1983 (in short 'Act') had been initiated on
08.08.2013. Pending the said enquiry, the petitioner had attained the age of
superannuation and it is stated that he was relieved from his duty but not
permitted to retire from service. It had been further stated that subsequently,
charges have also been framed against the petitioner on 09.02.2017 and an
order of dismissal was passed on 17.11.2017.
5. It had been further contended that the petitioner has not challenged
the order of dismissal. Thereafter, surcharge proceedings were issued under
Section 87 of the Act and the petitioner was called upon to pay a sum of
Rs.13,85,086/- together with interest.
6. The petitioner had filed an appeal under Section 152 of the Act
before the Cooperative Tribunal/Principal District Judge, Villupuram with a
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W.P.No.24794 of 2017
delay of 1137 days. The application seeking condonation of delay in I.A.No.2
of 2022 in unumbered CMA was dismissed. The petitioner appears to have
filed a revision petition before this Court in CRP.No.2218 of 2023, which is
pending before this Court.
7. Quite apart from that, the respondents had also given a complaint
before the CCW.CID, Villupuram and an FIR in Crime No.2 of 2017 has been
registered under Sections 120(B), 408, 471 and 477(A) of IPC for
misappropriation of funds. It was stated that consequent to the filing of the
final report, the trial is pending before the jurisdictional Magistrate.
Therefore, it was contended that the petitioner is not entitled to the relief
sought, viz, payment of terminal benefits.
8. Heard the learned counsel for the petitioner, learned Special
Government Pleader for R1 and the learned Standing Counsel for R2.
9. The order of the first respondent, which, according to the petitioner,
has permitted the petitioner to retire from service and according to the
respondents, the petitioner was only relieved from the duty and not permitted
to retire, reads as follows:
''Miz:
ghh;it 1 kw;Wk; 2y; fz;Ls;sthW
1938k; Mz;L jkpH;ehL Tl;Lwt[ r';f';fspd;
rl;lg;gphpt[ 81d; fPHhd tprhuiz epYitapy;
cs;sjhy; r';fj;jpy; Kjepiy vGj;jh;
jpU/V/uhn$e;jpud; taJ Kjph;t[ fhuzkhf
https://www.mhc.tn.gov.in/judis
W.P.No.24794 of 2017
gzpapy; ,Ue;J Xa;t[ bgw mDkjpf;fhky;
30/06/2015 gpw;gfy; gzpapy; ,Ue;J
tpLtpf;fg;gLfpwhh;/ ,th; jd;trk; cs;s
bghWg;g[ff ; is jpU/K.kzpf;fz;zd;
rpw;bwGj;jh; trk; xg;gilf;f
mwpt[Wj;jg;gLfpwhh;/
Xk;-=
jiyth;
,/20 fz;lkhdo bjhlf;f Tl;Lwt[
ntshz;ik Tl;Lwt[ fld; r';fk;
10. The aforesaid order is a little difficult to decipher. A reading of it
shows that since an enquiry under Section 81 of the Act is pending and the
petitioner herein is not permitted to retire upon attaining the age of
superannuation on 30.06.2015. But however, it is also stated that from the
forenoon of 30.06.2015, he was discharged from service. The word used is '
gzp ' . Whether it indicate service of the petitioner or the duties which the
petitioner was to perform are not explained properly in the order.
11. However, it is now informed that the petitioner had been paid the
terminal benefits substantially except the surrender leave salary and gratuity
payment, which he now seeks in this Writ Petition.
12. Learned counsel for the petitioner had placed reliance on on the
judgment of the Full Bench of this Court reported in 2015 [3] LW 513
[S.Andiyannan Vs. The Joint Registrar, Cooperative Societies, Madurai
Region, Madurai and Another]. The reference before the Full Bench was
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W.P.No.24794 of 2017
''Whether the disciplinary proceedings initiated against an employee of a
cooperative Society, governed by the Tamil Nadu Cooperative Societies Act,
1983, could be continued even after retirement of the said employee?''.
13. There was yet another reference. But in answer to the
aforementioned reference, the Full Bench had answered as follows:-
''29.The first legal question referred to this Bench
is whether the disciplinary proceedings initiated against
an employee of a cooperative Society governed by the
Tamil Nadu Cooperative Societies Act can be continued
even after the retirement of the said employee. The
decisions relied on by both the learned counsel have
categorically make it clear that the legal position is that
the authority could continue the departmental enquiry
against retired employee, only subject to applicable
statutory Rules or bye-law, which govern the terms and
conditions of his service of the employee. Hence, the
relevant Rules governing the service conditions of the
employee is the determining factor as to whether and in
what manner a domestic enquiry can be continued
against an employee, who retired after reaching the age
of superannuation. Hence, had there been any enquiry
initiate while the delinquent employee was in service, it
could be continued even after his retirement, subject to
the service Rules or bye law of the cooperative society.
If the service Rules relating to the employee permits for
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W.P.No.24794 of 2017
continuation, there would be no bar in continuing the
departmental proceeding, that ws initiated while he was
in service, even after his retirement. It is also
categorically held by the Hon'ble Supreme Court in the
latest decisions, that in such circumstances, even if the
guilt is proved, there is no possibility of imposing
punishment of dismissal or removal from service, as the
same is not legally sustainable.
30.Answer to the first question referred to this
Bench:
Under the Tamil Nadu Cooperative Societies Act,
1983, once an employee retired from service, there
could be no authority vested with the employer for
continuing any disciplinary proceeding in the absence
of relevant service Rules permitting the employer he to
continue the disciplinary proceeding. In other words, if
there is no service Rules or bye-law of the society
empowering the employer to continue the departmental
proceeding, the employer, would have no authority to
continue the departmental proceeding after the
retirement of the employee.''
14. It is therefore contended that the respondents had no authority to
continue the departmental proceedings.
15. Learned counsel for the 2nd respondent pointed out the Special Bye
Laws relating to the 2nd respondent/Primary Agricultural Cooperative Credit
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W.P.No.24794 of 2017
Society and in particular, placed reliance on the following portion:
''The disciplinary proceedings initiated against
an employee, while he was in service, shall be deemed
to be proceedings under this Special Bye Law, even
after his retirement and be continued and concluded by
the competent authority in the same manner as if the
employee had continued in service. In the event of any
such disciplinary proceedings having been initiated and
if the society has reason to believe that the disciplinary
proceedings will result in the removal or dismissal of
the employee from service, the society shall place the
employee under suspension. The society also, shall not
make payment of the terminal benefits like gratuity etc.,
payable to the employee until the disciplinary
proceedings are finally concluded.''
16. It is seen that very specifically an employee should be placed under
suspension. In the instant case, the petitioner had not been placed under
suspension. The proceedings dated 30.06.2015 can equally be interpreted as
having relieved him from service.
17. The ratio laid down by the Full Bench therefore, directly applies to
the petitioner herein.
18. It is not known as to why the respondents have passed order dated
30.06.2015 which very vague and ambiguous. Either way, since the petitioner
had been paid all other benefits, only the surrender leave salary and gratuity
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W.P.No.24794 of 2017
alone are yet to be paid, a direction is given to the respondents to effect such
payments. Necessary proceedings in this regard shall be issued within a
period of twelve (12) weeks from the date of receipt of a copy of this order. If
there is any loan which is recoverable from the petitioner, the same should be
made in accordance with the relevant Rules and Regulations.
19. However, it made clear that this order will not prevent the
respondents from proceeding further with the proceedings under Section 87 of
the Act as well as with the criminal case which is now pending against the
petitioner.
20. It is also made clear that this order is passed only with respect to
the payments to be given to the petitioner and not in respect of any pending
proceedings, either under Section 87 of the Act or in the criminal case pending
against the petitioner, as they will have to be adjudicated only on the basis of
the evidence produced before the particular authority/Court.
21. This Writ Petition stands disposed of with the above directions. No
costs. Connected Miscellaneous Petition is closed.
21.08.2023
Index: Yes/No
Speaking/Non-speaking order
Neutral citation:Yes/No
sl
https://www.mhc.tn.gov.in/judis
W.P.No.24794 of 2017
C.V.KARTHIKEYAN,J.
Sl
To
1. Joint Registrar of Cooperative Societies,
Villupuram Zone, Villupuram.
2. President,
E-2028 Kandamanady Primary Agricultural
Cooperative Society,
Kandamanady, Villupuram Taluk & District.
W.P.No.24794 of 2017
and WMP No.26177 of 2017
21.08.2023
https://www.mhc.tn.gov.in/judis
